Hosmer v Cook Shire Council[2012] QSC 91

SUPREME COURT OF QUEENSLAND

[1] The plaintiff, Mr Hosmer, claims damages arising from an injury received in the course of his work for the defendant, Cook Shire Council (“the Council”) as a labourer. 

The issues

[2] Mr Hosmer pleads that on or about 29 April 2008 he suffered an injury to the lumbar spine when carrying out a task in which he was required to repeatedly swing a sledge hammer over his head, while kneeling, to strike dumpy pegs with significant force into hard and resistant ground.[1]  It is common ground he was required to perform that task in the course of his employment with the Council.  Mr Hosmer pleaded that the injury was caused by the Council’s breach of its obligations and duties.[2] 

[3] Despite its earlier denials in respect of liability the Council admitted liability at trial, subject to a qualification, flowing from its amendment at trial of paragraph 6 of its Amended Defence to read:

“As to the allegations in paragraph 6 of the Amended Statement of Claim, the defendant:

(a) admits that the incident referred to in paragraph 4 of the Statement of Claim was occasioned by the defendant’s negligence and/or breach of contract;

(b) denies that the plaintiff’s alleged injury was caused by the said incident on the basis referred to in subparagraphs 4(e)(ii) and (iii) herein.”[3]

[4] Paragraph 4 of the Amended Defence relevantly pleaded:

“4. As to the allegations in paragraph 4 of the Statement of Claim, on or about 29 April 2008 the defendant:

…

(e)

(i) admits that the plaintiff has suffered injury to his lumbar spine.

(ii) does not admit that the said injury is a result of the plaintiff performing the task referred to in paragraph 4 of the Statement of Claim, on the basis that whilst the defendant has made reasonable inquiries in relation thereto, it remains uncertain of the truth or otherwise of the allegation in he is unable to admit it;

(iii) alleges that the said injury is the result of a pre-existing degenerative condition of the lumbar spine.”

[5] There is some literal inconsistency in the Council’s amended paragraph 6. On the one hand it admits liability for the incident (“the sledge hammering incident”) described in paragraph 4 of the Amended Statement of Claim, a description that specifically alleges that the injury was suffered in the course of carrying out the task there described.  On the other hand, it also denies the incident caused the alleged injury. However the obvious intention of the words used was, firstly, to admit that if an injury was caused by the sledge hammering incident it was caused by the defendant’s negligence and or breach of contract, and secondly, to maintain that the injury complained of was in fact caused by a pre-existing degenerative condition.

[6] The trial was therefore litigated on the basis liability was admitted in respect of such injury, if any, as was actually caused by the sledge hammering incident.

[7] As the trial progressed it became apparent and there was no real dispute that Mr Hosmer was injured in the sledge hammering incident but there was some dispute as to the significance of his pre-existing back condition in assessing the true extent of the injury.

[8] The more major dispute at trial centred upon assessing the true extent of the impact of the injury upon Mr Hosmer, that is, the quantum of the loss flowing from that injury.

The injury

[9] Mr Hosmer described the circumstances under which his injury was caused, and the aftermath thereof, in his Quantum Statement:

“I was injured on the afternoon of 29 April 2008 whilst working for the defendant.  At the time of the accident I was involved in the driving of dumpy pegs into hard ground.  Whilst I was hammering a peg, I heard a click noise and felt a suction sensation in my lower back.  I felt as if something let go within my back.  I kept on working until the end of the shift which was about 4 or 4.30 pm.  I had a tingling numb sensation in my back running down to my hips.

The following day I was confined to bed due to severe pain in my back from the back of my right knee to the top of my hips. 

The next day I got up to go to work.  I was suffering severe pain.  I drove to the defendant’s depot but was told to see a doctor…I was in bed for nine days other than to walk about three metres to go to the toilet which would take me about 25 minutes because of the pain I was experiencing…

In February 2009 I was put on a return to work programme with the defendant for two days, which was unsuccessful because of my back pain…

At the present time I am not working.  I am restricted in what I am able to do by the pain which is in my right hip and goes down my right side buttock.”[4]

[10] In the Q Comp Medical Certificate signed by Dr McIvor on 1 May 2008 the diagnosis was “lower back pain”.[5]  The same description appears in the details of injury contained within the Local Government Work Care Application for Compensation signed 2 May 2008.[6]

[11] Mr Hosmer was assessed at the request of the Queensland Local Government work Care Scheme by orthopaedic surgeon Dr Kingsley Foote on 21 November 2008.  In his written report the following day, Dr Foote noted Mr Hosmer had been treated conservatively by his General Practitioner and more recently had been referred by an orthopaedic surgeon to Dr Emile Brand, who administered an epidural steroid injection, on 1 October 2008, which only improved Mr Hosmer’s condition very slightly.  Dr Foote’s diagnosis and prognosis was:

“Diagnosis:  A soft tissue injury of the lumbo sacral spine with a central disk protrusion at L5/S1 resulting in a moderate degree of spinal stenosis on CT scan but clinically he has no symptoms of spinal stenosis.

Prognosis:  The prognosis is good generally but not good for arduous lumbo sacral work.” [7]

[12] At that stage Dr Foote opined there was no pre-existing condition relevant to the injury and that there was a causal relationship between the injury and the employment.[8] 

[13] When Dr Foote assessed Mr Hosmer again, on 19 March 2009, he noted an MRI lumbar spine of 24 February 2009 had revealed:

“…quite extensive pre-existing asymptomatic degenerative changes in his discs and facet joints marked in L5/S1 with a broad based area of focal protrusion and narrowing of the canal at that level.” [9]

[14] He reported his diagnosis and prognosis as:

“Diagnosis:  My diagnosis remains a soft tissue injury of his lumbo sacral spine superimposed on considerable underlying previously asymptomatic degenerative changes in his lumbo sacral spine.  He is coping with most of his activities of daily living and has reached maximum medical improvement.

Prognosis:  His prognosis is good for general life activities but I agree with Dr Hill, his general practitioner, that he will no longer be able to perform arduous lumbo sacral spinal work.” [10]

[15] Dr Foote concluded there was a 5% permanent impairment of the whole person from which 1% must be deducted because of “pre-existing degenerative changes”, thus giving rise to a whole of person impairment from the injury suffered on 29 April 2008 of 4%.[11] 

[16] On 31 May 2010, Associate Professor Richard Williams examined Mr Hosmer.  Associate Professor Williams’ diagnosis and prognosis in his report was:

“The diagnosis is:  Work related aggravation of L4/5 spinal stenosis with persistent central back pain and referred leg pain.

The prognosis at this stage, 2 years from the onset of symptoms, is for persistence of pain at its current level without likelihood of improvement or deterioration.”[12]

[17] His evaluation of permanent impairment considered the signs and symptoms were most in accord with Diagnosis Related Estimated Lumbar Category II with an associated impairment of 8% of the whole person.  However, his report noted some minor previous symptoms in evidence and suggested, of the 8% impairment, that 6% related to the work related activity with which this case is concerned and 2% to the pre-existing symptomatic condition.[13]

[18] On the whole of the evidence I find the injury to be a soft tissue lumbo sacral spinal injury at L5/S1 (which because of an anatomical variation in Mr Hosmer’s lumbar spine is also the spinal level known as L4/5),[14] including focal protrusion in that vicinity and aggravating spinal stenosis (“the injury”).

Past episodes

[19] The reference in Associate Professor Williams’ report to some minor previous symptoms was to two occasions in 2007.  In May 2007 Mr Hosmer fell at work stepping out of a truck and suffered a lower right-sided back pain, which did not necessitate any time off work.[15] In December 2007 Mr Hosmer suffered a temporary back injury when moving machinery and boats for an auction.[16]

[20] Associate Professor Williams indicated in cross-examination at trial that he had, in compiling his report, been unaware that the December 2007 incident had resulted in Mr Hosmer taking five days off work on workers compensation, which was followed by two weeks holiday leave.[17] He explained that injury, because of its relationship to heavy manual activity, was likely to be related to the underlying condition being symptomatic at that time.[18]  In the light of that episode involving symptomatic lower back pain requiring time away from the workplace, he modified his apportionment of the cause of the 8% impairment to 4% each as between the work related activity and the pre-existent symptomatic condition.[19]

[21] Associate Professor Williams’ elevation of the proportionate role of the pre-existing symptomatic condition upon impairment during his cross-examination at trial was, to an extent, a product of his new found and partially incorrect understanding the pain from the December 2007 incident lasted for between five days and three weeks.[20] In fact there was no evidence to suggest the two weeks holiday leave, taken after the five days Mr Hosmer was given off work (during the vacation period which many Australians take around Christmas), was in any way related to on-going pain. When that was pointed out to Associate Professor Williams he explained:

“All that I would have been able to say, with any degree of certainty, is that the pre-existent condition became symptomatic when demands were placed upon the lumbar spine and, therefore, the pre-existent condition was in evidence, prior to the events of 2008.[21]

…regardless of the time away from the workplace, needing to have time away from the workplace indicates to me a significant degree of discomfort and incapacity which can be attributed to the underlying process. So in that sense, the events of December 2007 have influenced my apportionment of the impairment towards the pre-existing condition.”[22]

[22] Neither of Dr Foote’s reports contained any reference to the two episodes of back problems in 2007 or indeed to any past history relevant to the presenting problem.[23]  His second report referred to the pre-existing degenerative changes in the spine as asymptomatic, that is, without symptoms, although he did deduct 1% from the whole person impairment of 5% to allow for the pre-existing degenerative changes. The two 2007 episodes of back problems were not raised in the evidence in chief or cross-examination of Dr Foote, who (with the consent of the parties) gave evidence before Associate Professor Williams.

Causation and Significance of Pre-existing Condition

[23] While both experts attributed a proportion of their assessment of Mr Hosmer’s current whole of body impairment to a pre-existing condition it does not follow from their evidence that Mr Hosmer’s symptoms, present since his injury in the sledge hammering incident, are attributable to some cause other than the sledge hammering incident with which they commenced and since which they have persisted.

[24] Dr Foote opined in his first report that the relationship between employment and the injury was “causal”.[24]  While his second report noted the injury was “superimposed on considerable underlying previously asymptomatic degenerative changes”[25] he maintained his opinion that the injury was suffered on 29 April 2008,[26] that is, as a result of the sledge hammering incident.

[25] Associate Professor Williams noted the “signs and symptoms have a continuous temporal relationship” to the sledge hammering incident[27] and believed “impairment to be largely due to the work based activity, because of the temporal relationship between Mr Hosmer’s disability and the events described”.  Associate Professor Williams did not consider the degenerative process would have become symptomatic in the absence of the sledge hammering incident[28] and did not consider that in the absence of the sledge hammering incident Mr Hosmer would, in the natural course, “have experienced a symptomatic lumbar spine condition any greater than the two prior temporary exacerbations at any point”.[29]  While Associate Professor Williams described the injury as a work related “aggravation” of L4/5 spinal stenosis, he plainly regarded it as an injury and not merely an acceleration of a pre-existing condition:

“I would consider the injury to have been permanent and would not have considered there to have been a special acceleration of the pre-existent condition”.[30]

[26] Associate Professor Williams’ opinion that the injury was not an acceleration of a pre-existing condition was not shaken by cross-examination.

[27] At trial neither expert altered his opinion of the causal connection between the sledge hammering incident and the injury.

[28] As to the pre-existing condition, there was no evidence from either expert opining whether, or if so when, the pre-existing condition would in the normal course have given rise to symptoms akin to or as disabling as those present since the injury. For example, this exchange occurred in the cross-examination of Associate Professor Williams:

“I am just wondering whether you’re able to express any view as to the extent to which that now higher level of pre-existing lower back condition may have rendered him more vulnerable to further injury? - - Yes, he certainly has a significant – in my opinion, a significant underlying degenerative condition, which is liable to exacerbation on a temporary basis or even aggravation if the circumstances dictate on a more permanent basis.  However, we have no scale of severity in terms of patients developing symptoms in – in some – pursuant to these types of degenerative problems because there’s a notoriously poor correlation between radiological findings and patients’ symptoms and – and vulnerability to injury, and for this reason it’s extremely difficult to be dogmatic about when a claimant or a patient is likely to develop symptoms from an underlying condition with any degree of accuracy.

Bearing in mind the December 2007 incident where mechanical back pain arose from heavy lifting at work, is it fair to say that – that you now know about, is it fair to say that Mr Hosmer’s days of hard manual labour prior to this incident were limited? - -  I – don’t think I could be – it would be unlikely that you could make a determination on that…”[31]

He went on to say, referring specifically to the December 2007 incident:

“I wouldn’t be able to draw any direct estimate of his future liability to – to future injury based on that specific incident.”[32]

[29] In short there was persuasive evidence the sledge hammering incident caused the injury and it was not clearly established what the future effects of the pre-existing condition, apart from the result of the sledge hammering incident, were likely to be. The proper approach to dealing with the latter aspect was clarified by the High Court’s decision in Purkess v Crittenden (in explaining its earlier decision in Watts v Rake[33]):

“It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake was essentially concerned. It ... was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. … In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability … .”[34]

Applying that reasoning to the present case, where it was not established with any degree of precision what the future effects of the pre-existing condition, apart from the result of the sledge hammering incident, were likely to be, it is therefore proper to deal with this case on the basis that the sledge hammering incident was the cause of the injury.

[30] I find the sledge hammering incident caused the injury.

[31] It follows, from that finding and the Council’s admission in its amendment at trial to paragraph 6 of its Amended Defence, that the Council is liable for causing the injury.

[32] These findings do not render the pre-existing condition irrelevant to my assessment of damages. Both experts regarded the pre-existing condition as responsible for a proportion of Mr Hosmer’s impairment, however it was acknowledged by both experts that impairment in the clinical sense they described was not an assessment of disability.[35] On any view of the evidence the pre-existing condition had not occasioned the degree of disability suffered by Mr Hosmer from the time of the injury and it is the additional impairment occasioned by the injury that has resulted in such a degree of disability in Mr Hosmer that he is unable to perform the same arduous lumbo sacral work and enjoy the same quality of life as he did before the injury. But what of the possibility that at some future time the pre-existing condition would have resulted in Mr Hosmer becoming as disabled as he was following the injury, even if the injury had not occurred?

[33] Associate Professor Williams could not estimate what that possibility was. But, as was observed in Malec v JC Hutton Pty Ltd,[36] “…questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof”. The proper approach to be taken by the court in this context was explained in Malec’s Case:

“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”[37]

[34] Associate Professor Williams did not expressly say the possibility existed that at some time the pre-existing condition would have resulted in Mr Hosmer being disabled to the same extent as occurred following the injury, even if the injury had not occurred. However, my strong impression in hearing his evidence was that it was to the effect that the possibility existed and it is apparent that is what his words implied. For instance, his explanation of the difficulty in predicting when the pre-existing condition might have given rise to a disability of the same extent as occurred following the injury necessarily assumed such a possibility existed.

[35] Given the objective evidence of significant degenerative changes, the fact that both experts opined the pre-existing condition was responsible for some impairment and the evidence of the plaintiff’s own expert that the pre-existing condition was symptomatic prior to the injury I find the possibility was real and not so low as to be speculative. It will therefore be necessary, in accordance with Malec v JC Hutton Pty Ltd, to assess the degree of probability of the pre-existing condition at some time after the injury disabling Mr Hosmer to the same extent as occurred as a result of the injury and adjust the damages accordingly. Counsel for the plaintiff properly conceded some such discounting should occur.[38]

[36] Before turning to the heads of damage it is necessary to consider a number of issues raised by the Council bearing upon the true extent of the injury and Mr Hosmer’s credibility.

True extent of the injury - exaggeration or malingering?

[37] The Council submits Mr Hosmer exaggerated and was not truthful about the extent of his symptoms.

[38] When Mr Hosmer initially saw Dr Foote on 21 November 2008, Mr Hosmer had been off work because of the injury for almost seven months.  Dr Foote, who considered the prognosis was “not good for arduous lumbo sacral work”[39] recommended Mr Hosmer “should be returned to alternative duties with work hardening as soon as possible”.[40]

[39] The ensuing attempt to place Mr Hosmer on a return to work programme in February 2009 failed because of his back pain.[41]

[40] Mr Hosmer saw Dr Foote again the following month, on 19 March 2009.  Dr Foote’s report recorded Mr Hosmer as having told him and another professional, physiotherapist Ann Morgan, whose report was with Dr Foote, that his condition had improved 95%.[42]  As indicated by me during addresses I will disregard Dr Foote’s hearsay reference to what the other professional was supposedly told because that person was not called as a witness and Mr Hosmer did not accept he had said such a thing to that person.[43]

[41] I note that in association with some disputes between the parties that arose after I first reserved this matter, a letter by Ms Morgan was exhibited as RJS7 to an affidavit of the solicitor for the plaintiff and as TSB1 to an affidavit of the solicitor for the defendant. Those affidavits, on the resumption of the hearing (a resumption delayed in part by the vacation period and, more significantly, by prolonged problems thereafter with counsel unavailability), became exhibits 25 and 26 respectively. The letter contains the words:

“He said that he had just come from GP Dr Hill who told him that:

 …

 He was 95% recovered from the injury. …”

[42] It is tolerably clear Dr Foote misunderstood that report as indicating Mr Hosmer had said he was 95% recovered when in fact it was his GP who had expressed that view.

[43] Mr Hosmer denied he had told Dr Foote his condition had improved 95% and suggested his condition had improved 5%, not 95%.[44] I believed Mr Hosmer’s denial, which was particularly emphatic, although there was an obviously speculative quality about whether he had said 5% and been misunderstood.

[44] Dr Foote maintained in evidence that Mr Hosmer had said his condition had improved 95% or had said “something like that”.[45]  Dr Foote’s report is dated two days after the re-assessment.  It is inherently unlikely Dr Foote would have noted the words he did in that report unless he had been told something to that effect by Mr Hosmer, but whether it was Mr Hosmer’s own assessment or something Dr Hill had told him is another matter.  Given the above-mentioned example of Dr Foote’s misunderstanding of what Mr Hosmer told Ms Morgan on this subject there is an obvious risk of recurrence of the same misunderstanding of what Mr Hosmer told him, particularly given his evidence was merely that “something like that” was said. Against that background and bearing in mind his contemporaneous notes were not produced,[46] I am not prepared to attach any weight to Dr Foote’s report’s record of words used about a 95% improvement. 

[45] I am fortified in taking that approach by the fact that Dr Foote did not appear to interpret Mr Hosmer’s words, whatever they actually were, in the broader context of the whole re-assessment as literally meaning Mr Hosmer was almost completely recovered.  He did not suggest that in his findings and used much more guarded language, merely saying, “If anything, Darryl Hosmer’s [condition: sic] has improved”[47].  Moreover, Dr Foote maintained his prognosis in his second report and at trial that Mr Hosmer would no longer be able to perform arduous lumbo sacral spinal work.[48]

[46] Mr Hosmer remained off work at the Council until his employment was formally terminated by a letter of 31 July 2009, which said, inter alia:

“Unfortunately Council does not have any suitable employment for you because of your current medical condition.”[49]

[47] In the period between Dr Foote’s second assessment and the formal termination of employment Mr Hosmer had done some casual fulltime work for Grain Corp Operations Limited at Meandarra as a console operator.  While he asserts he could not continue at that work “due to the constant pain”,[50] he apparently persevered at it for three weeks from 27 April 2009 to 19 May 2009.[51]

[48] Mr Hosmer came to be working for Grain Corp at Meandarra because his sister’s husband had committed suicide and he travelled down to help her and her children.  While there, his sister, who was second in charge at Grain Corp, said they were short on workers and asked if he would help out by using a handheld operated button to fill trucks from silos.[52] 

[49] It appears, despite being off work from the Council on workers’ compensation, Mr Hosmer could not resist the temptation to secretly do some paid but physically undemanding work on the side when a nepotistic opportunity to do so arose. 

[50] Mr Hosmer disclosed nothing to Grain Corp in his employment application of his disability, declaring there were no health reasons which would prevent him from regular manual handling of loads, including lifting, bending, stretching and twisting or any pre-existing health condition which might be aggravated by such duties.[53]  I infer he made such a declaration not because his back was better or because, as he testified, he did not read the detail of it.[54] Rather he made the declaration because it was a prerequisite for securing a job in which he did not think the substance of the declaration mattered because he anticipated he would not actually be doing any physically demanding work.

[51] Mr Hosmer did not disclose to the Council then or prior to its termination of his employment that he had worked for Grain Corp.  While he was working at Grain Corp he needed an updated Workers’ Compensation medical certificate and saw Dr Victor Lee for that purpose.  He plainly did not tell Dr Lee he had been working fulltime for Grain Corp for Dr Lee only certified Mr Hosmer was fit for undemanding work during restricted hours of four hours a day for two to three days a week.[55]  Further, he did not mention his employment with Grain Corp to the Medical Assessment Tribunal[56] or to his Occupational Therapist, Mr Hoey,[57] or to Centrelink’s Job Capacity Assessors,[58] or in his Notice of Claim for Damages.[59]

[52] An attempt was also made to prove Mr Hosmer did not disclose the fact of his work for Grain Corp to his doctor, Dr Hill, in the context of seeking a letter from Dr Hill to the insurer, which in turn made a substantial “TPD” payout of $178,290.25 to Mr Hosmer under Mr Hosmer’s Council superannuation policy.[60] While Mr Hosmer’s denials about that aspect were unconvincing there is no positive evidence contradicting him and I draw no adverse inference about it. In the present context that does not meaningfully assist Mr Hosmer in that there is a substantial body of other evidence of repeated non-disclosure to others during this era.

[53] Mr Hosmer advanced no credible explanation in his evidence for the pattern of non-disclosure during 2009 to persons and organisations he would have well realised had an interest in being told of his paid work for Grain Corp.

[54] Mr Hosmer finally disclosed the fact of his work for Grain Corp to the Council through his solicitor’s letter to the Council’s solicitor on 13 May 2010.[61]  His counsel suggests that disclosure shows Mr Hosmer had not been deliberately concealing the fact he had done the work.  I disagree.  I infer he was stupidly but deliberately being secretive about it during 2009 so as not to risk reducing the monetary payments he hoped to receive during that era.  He did not strike me as a particularly sophisticated thinker and I doubt that at the time of his non-disclosures he gave any thought to the longer-term ramifications thereof.

[55] His deliberate lack of candour during that era and his failure to concede the obvious about it when giving evidence are obviously matters to be borne in mind in considering his evidence but they were not destructive of his credibility generally.

[56] Mr Hoey, Occupational Therapist, examined Mr Hosmer on 7 September 2009.  He assessed Mr Hosmer as no longer fit for heavy-duty work of the kind he had performed at the Council.

[57] Associate Professor Williams assessed Mr Hosmer on 31 May 2010.  He opined:

“The prognosis at this stage, two years from the onset of symptoms, is for persistence of pain at its current level without likelihood of improvement or deterioration…

Mr Hosmer’s capacity to persist as a labourer in the long term is likely to be impaired and he may require a lesser manual occupation, such as that which he has attempted at Grain Corp, in the long term…”[62]

[58] The Council alleged Mr Hosmer exaggerated his symptoms when examined by Associate Professor Williams. 

[59] Associate Professor Williams reported that Mr Hosmer walked with an antalgic gait, that is, he limped.[63]  Mr Hosmer gave evidence that since the incident he had not walked straight or normally and had walked with a limp ever since the incident.[64]  He maintained it took him 15 months to stand up straight instead of being hunched over[65] and that at the time he saw Dr Foote he could not at that stage heal and toe walk.[66] 

[60] However, Dr Foote reported that Mr Hosmer presented with a normal gait and could heal and toe walk.[67]  Dr Foote explained his noting of Mr Hosmer’s normal gait meant Mr Hosmer walked normally and did not limp and explained that if Mr Hosmer had been hunched over Dr Foote would have commented on that in his report.[68]

[61] Mr Hoey also recorded that on his examination Mr Hosmer’s gait was unaffected.[69] 

[62] These inconsistencies might be inconsequential had the evidence suggested there was a progressive worsening of Mr Hosmer’s gait over time, however Mr Hosmer maintained it was a problem from the beginning.  Moreover, Mr Hosmer did not lay claim to a significant decline in his condition between the era when Dr Foote and Mr Hoey saw him and when Associate Professor Williams later saw him.  To the contrary his evidence was that his condition had slowly improved since the accident[70] and he disowned the possibility that there had been some decline in his condition before he saw Associate Professor Williams.[71]

[63] When Associate Professor Williams examined him, in addition to walking with an antalgic gait, he was only able to heal and toe walk with some discomfort and could only straight leg raise bilaterally to 30 degrees.[72]  Associate Professor Williams testified that Mr Hosmer’s apparent incapacity to raise his leg beyond 30 degrees was unexpected, as usually patients with his condition can elevate their leg beyond 30 degrees, more to 60 degrees.[73]  He acknowledged it was possible there had been a deliberate attempt by Mr Hosmer not to allow his leg to elevate further[74] although he noted the lack of capacity could simply have flowed from an exacerbation of his symptoms on the particular day and that individual clinical signs sometimes vary on a daily basis.[75] He did not report any suspicion of overstatement or exaggeration by Mr Hosmer.[76]

[64] In the light of the evidence of both Dr Foote and Mr Hoey as to the manner of Mr Hosmer’s presentation, I do not accept Mr Hosmer’s evidence that his gait has been consistently impaired as he described in evidence. I bear that in mind in considering his evidence generally and particularly as to the true extent of his injury. However in the light of Associate Professor Williams’ observation as to variation from day to day in individual subjective clinical signs, I do not infer Mr Hosmer was deliberately exaggerating his symptoms on his presentation to Associate Professor Williams.  I infer merely that his apparent difficulty with gait and the straight leg raise on that day was not typical of and was worse than his usual state post-injury. 

[65] In any event, it appears Associate Professor Williams did not regard Mr Hosmer’s gait or his apparent difficulty with the straight leg raise as significant,[77] that is, he did not place weight on the test findings in isolation.[78]  Thus, Mr Hosmer’s apparent gait and straight leg lift problems seemingly had no material bearing upon Associate Professor Williams’ ultimate opinion that the injury constituted a 4% whole of person impairment. 

Other credibility issues

[66] The Council submitted some adverse inferences ought be drawn about aspects of Mr Hosmer life history and personal circumstances.

[67] Mr Hosmer is 41 years old.  He left school after Year 10 at the end of 1986.  He was in varied employment from then until December 2003, changing employers about once a year.  In that period, he worked predominantly as a labourer in the sawmilling, building and motor vehicle industries and also worked as a cleaner.[79]  He worked predominantly in towns in southern Queensland during this period, mostly in Maryborough.

[68] The Council submitted Mr Hosmer’s work history in this period involved no periods of substantial employment and was so lacking in detail as to raise the question whether there was actually only minor employment in some of those years.[80]  However, no evidence emerged in cross-examination that his employment during the era before late 2003 was more sporadic than was conveyed by the history he gave.

[69] At first blush, the frequency with which Mr Hosmer changed employers during this era may appear high but there is no evidence and no logical basis to suggest it is unusual for unskilled manual workers such as Mr Hosmer to change employers as often as he did.  Moreover Mr Hosmer gave evidence that a number of his employers “went into liquidation or sold up and moved from Australia”.[81]  A potentially more noteworthy aspect of his employment history in this era is that it was with private rather than public sector employers, that is, he had not had a government job.

[70] Mr Hosmer was unemployed[82] from 8 December 2003 until July 2006 when he commenced working for the Council, his first job as an employee of government.

[71] The Council submitted Mr Hosmer’s lengthy period of unemployment showed he was not by disposition determined to secure employment and was content to lead a lifestyle that did not require much money to support it.[83]  However, there was an uncontroversial explanation for Mr Hosmer’s period of unemployment. 

[72] Mr Hosmer discovered his wife had been having sexual relations with Mr Hosmer’s brother-in-law.[84]  He initially tried to keep the marriage going but then separated from his wife, leaving Maryborough where he was in work and moving temporarily to western Queensland.[85]  He subsequently became concerned for the welfare of his two young children, who had stayed with their mother, and assumed their custody. He then moved with the children to Cooktown where most of his family then lived.[86]  He there cared for his children and gradually overcame the emotional upheaval that had occurred in his life before again seeking paid employment.[87] 

[73] He sought work in Cooktown with a number of potential employers without success for about a year.[88]  One of those employers was the Council.  He specifically sought work with the Council because of the suitability of its hours to his circumstances as a single parent.[89]  He also thought because of his general lack of qualifications that a horticultural certificate he had previously obtained might help him obtain work with the Council’s parks and gardens section and after four or five months of trying he obtained a job with the Council.[90]

[74] Against that background it would be unfair to Mr Hosmer and without foundation to infer his period of unemployment prior to his employment with the Council indicates any predisposition against seeking and being in employment.

[75] A further matter said to bear adversely upon Mr Hosmer’s credibility is the alleged state of his and his girlfriend’s living arrangements.[91]  Mr Hosmer lives in Cooktown with his two children but is in a relationship of six years standing with his partner Emiline.[92]  Despite this, and despite he and Emiline having had a child together on 16 September 2011, they do not live together.[93]  She lives approximately two kilometres away from Mr Hosmer in Cooktown with her mother and seven other people.[94]  It was put to Mr Hosmer in cross-examination that in fact they lived together at his home in a de facto relationship and that he was untruthful about that in order to maximize his Centrelink entitlements. Mr Hosmer rejected that suggestion.[95]  There was some attempt to contradict Mr Hosmer by reference to him allegedly telling Dr Foote that he lived in a de facto relationship but it transpired, on the evidence of Dr Foote, that a record to that effect only arose because of limitations in what pro forma entries could be ticked during the consultation.[96]  Moreover, the relevant line of that entry in the report contains a further error to the effect Mr Hosmer has no children – not a matter he is likely to have misrepresented to Dr Foote.[97] Mr Hosmer explained in re-examination that neither he nor Emiline want to live in each other’s homes and are content with their present domestic arrangement.[98]

[76] It was submitted I ought find the plaintiff should have called Emiline as a witness[99] but no adverse inference can logically flow from her absence as a witness and no proper basis was identified why it should.  On the face of it, this issue went to credit and Mr Hosmer’s answers on the topic should be regarded as final. Mr Hosmer’s evidence describes a domestic arrangement that is not so extraordinary as to render his evidence about it implausible or to detract from his credibility.

General damages

[77] Mr Hosmer experienced severe pain as a result of the injury and had to remain in bed for nine days.[100]  He found the pain so excruciating he could not bend his head or his neck towards his chest.[101]  He still does.[102]  His attempt at returning to work in February 2009 was unsuccessful because of his back pain.[103]  His ongoing and now apparently permanent symptoms involve pain in his right hip going down his right side buttock.[104]

[78] He maintained the pain from the injury site to his right leg was constant and was present even as he sat giving evidence.[105]  It interferes with his sleep.[106]  As discussed above it interferes with his gait occasionally.

[79] He does not derive “a great deal of relief at all” from painkillers and the epidural performed to the base of his spine made no material difference to the pain.[107] 

[80] Prior to the incident he engaged in pig hunting, swimming, rock climbing, motorbike riding, horse riding and bush walking but he no longer pig hunts, rock climbs and rarely swims because of the pain from the injury.[108]  He avoids strenuous activity.[109]  He no longer uses his fishing boat very often because he has no one to assist him in putting it in and out of the water.[110] Some days he takes his children to Archer’s Point where he supervises his son riding his motorbike.[111]  It emerged in Mr Hosmer’s cross-examination that he had replaced his former two wheeler motorbike, which he could no longer kick-start because of his injury, with a quad-bike which he rides in company with his children from time to time on a dirt formed gravel road at Archer’s Point.[112]  

[81] He appears able to cope with most of the general activities of daily living excluding the above-mentioned sports and hobbies.[113]

[82] He alleges the injury has affected his sexual relationship in that he is unable to achieve an erection due to the back pain without the use of medication.[114]  He did not experience such difficulties before the sledge hammering incident.[115] It was Dr Hill, who was not called as a witness, who prescribed the medication when Mr Hosmer complained to him of the problem nine months after the injury.[116] He has not sought specialist treatment for the problem,[117] nor has his doctor recommended he seek it.[118] In the upshot there is insufficient evidence to conclude the existence of a causal connection between the injury and Mr Hosmer’s erectile difficulty.

[83] Associate Professor Williams opined Mr Hosmer may be a reasonable candidate for a decompression procedure as a result of which:

“Mr Hosmer may experience some improvement in lower back pain which would return him to some form of employment. There would also be likely improvement in right buttock and left thigh pain”.[119]

Mr Hosmer explained that, as a result of discussions with his general practitioner and other people he knew, he was concerned the surgery might make matters worse so that he might not be able to fend for his children.[120] He rejected the suggestion he did not want to undergo surgery because his physical problem is not significant.[121] It is not alleged that his refusal to undergo surgery is unreasonable[122] or that he has failed to mitigate his loss by not opting for surgery. The topic of further surgery is therefore of no material relevance.

[84] While it is true that part of Mr Hosmer’s impairment was said by the experts to be attributable to the injury and part to the pre-existing degenerative condition, on any view of the evidence the pre-existing condition had not previously occasioned the degree of continuing disability suffered by Mr Hosmer after the injury. It is the additional impairment occasioned by the injury that resulted in such a degree of disability in Mr Hosmer as to cause his above-mentioned pain, suffering and loss of amenity of life. Nonetheless, it is appropriate to temper the assessment of general damages in the light of the possibility that he may at some point post injury have suffered the same overall degree of disability and thus the same pain, suffering and loss of amenity of life, even if he had not been injured.

[85] The Council submits for an award of $40,000 whereas Mr Hosmer submits for $80,000. The general damages award of $80,000 sought by Mr Hosmer appears to be high in comparison to other cases,[123] and does not seem to reflect an appropriate degree of moderation for the possibility that he may at some point post injury have suffered the same overall degree of disability, even if he had not been injured. Making due allowance in moderation for that possibility I assess his general damages at $45,000.

[86] Mr Hosmer should be awarded interest on that amount assessed at 2% for the four years since the injury, that is, $3,600.

Past economic loss

[87] Mr Hosmer remains out of work. By the time of trial he had applied unsuccessfully for 22 jobs in Cooktown, being informed either that there were no positions or that the employer would not employ him because of his back condition.[124]

[88] It is clear from the evidence of the medical experts and the occupational therapist that Mr Hosmer cannot return to work involving heavy manual work in physically demanding occupations but that he does retain a capacity for physically less demanding work.

[89] Associate Professor Williams opined:

“I would not consider him a suitable candidate to work as a driver of a truck or taxi due to his intolerance of prolonged sitting.  It would be reasonable for him to work as a gatekeeper or ticket taker.  A storeman performing light lifting duties would be a reasonable alternative as well.  Courier driving would not be suitable, for the reasons stated above.”[125]

[90] Associate Professor Williams also observed Mr Hosmer “may require a lesser manual occupation, such as that which he has attempted at Grain Corp, in the long term”.[126]

[91] The fact that Mr Hosmer worked in the Grain Corp job for three weeks tends to confirm he has at least some residual capacity for work that is not physically demanding. His explanation at trial about why back pain caused him to cease the Grain Corp job, at which he worked for three weeks, was not particularly clear:

“And why did you finish doing that job? - - I could not do it for the pain no more.  For the – for the pain in my back.

OK.  What caused that, if you’re just standing there pressing a button? - - I was standing there pressing the buttons.  I’d sit down on the sides of the wheat or I’d lay on the sides of them and use the handheld control.”[127]

[92] When that response is considered in the light of Occupational Therapist Mr Hoey’s evidence it is likely that at Grain Corp Mr Hosmer experienced difficulty with managing and mitigating discomfit during prolonged periods, particularly in positioning himself to perform a sometimes repetitive task which of itself required no significant application of physical force. Mr Hoey opined in his report:

“In my opinion, Mr Hosmer evidences the following occupational restrictions:

a. Decreased tolerance for long periods of sitting, standing or walking;

b. Unfit for heavy or repetitive lifting (particularly below waist level);

c. Restrictions with forward bending or twisting.

Mr Hosmer has evidenced a capacity for occupations in the SEDENTARY and LIGHT range only (as detailed by the dictionary of occupational titles).  Within this strength classification he is further limited by his reduced standing and walking tolerances.

In my opinion, his ongoing occupational restrictions now preclude his being employed in jobs requiring long periods of standing or walking, manual handling (heavy lifting, pushing or pulling) or static or repetitive forward bending or jobs requiring the work to traverse ladders or stairs in this pool of occupations.”[128]

[93] Mr Hoey explained in cross-examination that the rationale behind the opinion expressed in his report,[129] that Mr Hosmer should attend a pain management clinic in Brisbane, was to better equip Mr Hosmer to get back to work:

“The rationale for the course was that a tall strong man who – who really needed to understand his symptomology better to get back into the workforce, a course like the pain one would be essential to do that…- to help the worker understand, you know, the difference between good pain and bad pain, and how they should modulate that pain in the workplace …and how to maximise his chances of remaining in the workplace…”.[130]

[94] Had Mr Hosmer seen fit to disclose his Grain Corp work and problems experienced with pain management during it to Mr Hoey it is unlikely, in view of the above evidence, that Mr Hoey would have materially revised his opinion.[131] Mr Hoey would likely have regarded the Grain Corp work as confirming his opinions both that Mr Hosmer retains a capacity to work only in occupations in the sedentary and light range, subject to reduced standing and walking tolerances in such occupations, and that Mr Hosmer needs training in how to better understand and modulate his pain in the workplace.

[95] While Mr Hosmer retains a capacity to work in less physically demanding occupations Mr Hoey opined that alone is not an indicator of his employability, that is, of his capability to gain employment, maintain employment and obtain new employment if required.[132] Mr Hoey explained that while Mr Hosmer might be physically able to perform work such as a security guard, sales assistant or console operator he does not have a background of work experience, qualifications or training in such fields, significantly diminishing his prospects of successfully competing for and securing such positions.[133]

[96] There was some exploration in cross-examination and re-examination of Mr Hoey of Mr Hosmer’s fitness to work as a service station console operator. Mr Hoey   explained the employability dilemma with such a position:

“…commercially, he…doesn’t have the skill-base…You’re right that lifting drinks could be a problem, but there’s not a lot of lifting drinks. More of a problem for this man would be that he’d never used an EFTPOS machine… or never had customer service experience, so in my view an employer wouldn’t give him a go…- it would be challenging to find an employer who’d give this man of 40 years of age with no experience, a go.”[134]

[97] Mr Hosmer’s history of loss of work through injury and his ongoing need to manage his injury and pain in the workplace will also make him less competitive with other jobseekers in such fields and require an empathetic employer.[135]

[98] So too will his limited literacy skills. His assertion in his Quantum Statement that he has difficulty in reading and writing[136] does not indicate the precise extent of that difficulty but my impression of him having seen him give evidence, during which time he appeared to read a variety of documents, is that, while he can read, he is likely of below average reading ability for an adult.

[99] Mr Hoey opined the only way Mr Hosmer was likely to get back into the workforce was with intensive jobseeker training and assistance.[137] He contemplated a graduated move off his disability pension into part-time work may assist him to re-enter the workforce.[138]

[100] The Council submitted Mr Hosmer was not truly motivated to seek further employment. To the extent this submission relied upon Mr Hosmer’s past work history and period of unemployment prior to working with the Council I reject it for the reasons earlier outlined.

[101] The Council’s submissions implied that if Mr Hosmer were serious about pursuing employment he would be prepared to move to a larger community than Cooktown to do so.  This appears to overlook that Mr Hosmer was already well settled in Cooktown with his children prior to the injury and that since then he and his partner have had another child. It may well be, as the children become older and Mr Hosmer’s personal or domestic circumstances change, that he elects to live elsewhere, just as he has done from time to time in the past. However, given his existing life circumstances it would be unfair to draw an inference adverse to the assessment of his economic loss from the fact he remains living in the same township he was living in before the Council caused his injury.

[102] The Council’s submissions also implied Mr Hosmer had likely been unmotivated to seek work as keenly he otherwise might have because of his receipt of the substantial TPD insurance payout. That might provide an explanation for a failure to actively seek work if there were evidence of such a failure. However, there is no such evidence. 

[103] The substance of Mr Hosmer’s evidence of his 22 attempts to apply for work in Cooktown post-injury was not directly challenged.  I approach it with some circumspection in the light of the credibility issues discussed earlier and because there was not much substance to the evidence. For example, it did not equip the court with any information about which of the applications were in response to advertised vacancies, what the physical requirements of each position were, whether those requirements exceeded his physical capacity post-injury or what the extent of his research of suitable available vacancies in the Cooktown area had been.

[104] Also lacking from Mr Hosmer’s evidence was material detail of steps he has taken, or his reasons for not taking steps, towards the pursuit of intensive jobseeker training and assistance and improved pain management in the work context. He has provided bare evidence of attempts to seek work but little evidence of attempts to better equip himself to obtain work of a kind different to the heavy labouring work of his past.

[105] In the face of evidence from his own expert that Mr Hosmer will find it difficult but not impossible to resume employment in a less physically demanding occupation than he has previously performed, the evidence advanced by him has not adequately explained why he has to date been unsuccessful in this difficult but not impossible task.  The lack of calibre of his evidence on this issue means an expectation was not raised of the defendant adducing evidence of available suitable employment.[139]  In the absence of some adequate explanation for his lack of success I am not prepared to conclude the difficulties identified by Mr Hoey were the sole reason for his lack of success in securing new employment to date, however I readily infer in the light of Mr Hoey’s evidence that it was the predominant reason.

[106] Despite these factual limitations it is necessary, as discussed in Smith v Topp & Anor,[140] to nonetheless make the best estimate I can to arrive at a fair award.  This is not a matter in which the evidence has equipped the Court with information about pay rates for some of the jobs Mr Hosmer is fit for.  It is therefore appropriate to look to what Mr Hosmer would have earned had he remained working at the Council and discount that amount moderately to allow for the fact that it was difficult, but has not been established on the balance of probabilities that it was impossible, for Mr Hosmer to have secured some employment in a less physically demanding job in the meantime. Given the difficulty in securing new work is inherently likely to be most acute in the first several years after injury before then improving over time there is good reason to apply a somewhat more modest discount for this aspect to past economic loss than to future economic loss. That discount in the context of the past economic loss in this case, and bearing in mind that it will be part of a larger overall discount, should be 10%.

[107] It will also be necessary to incorporate a discount for the probability that at some time after the date of the injury the pre-existing condition would have resulted in Mr Hosmer being disabled to his present extent, even if the injury had not occurred.  This probability is logically of the same application to economic loss whether the loss is pre or post trial, that is, whether it is past or future economic loss. To accommodate the more mathematical processes involved in calculating such losses, in comparison to the global assessment of general damages, it is appropriate to quantify the probability as a specific percentage.

[108] In all the circumstances of the case I assess the relevant degree of probability as 35%. In Smith v Topp Muir J, as he then was, observed a discount of 35% may be a little low to allow for such a contingency,[141] however when applying this contingency to the most significant award, future economic loss, I will also reduce the relevant retirement age for the calculation by five years from 67 to 62, it being unlikely Mr Hosmer would have worked beyond his early sixties in such a physically demanding job.[142]

[109] Evidence was tendered of the incomes of two Council employees in positions comparable to Mr Hosmer’s position with the Council before his injury.[143] Their average annual and weekly income, less tax, has been calculated in exhibit 6. The relevant losses of income using that undisputed information are:

[110] Adopting the above quantified loss of earnings of $149,290.98 and discounting it for the contingencies discussed above by 45%, Mr Hosmer’s past economic loss is $82,110.04.

[111] Interest should be allowed on past economic loss after deducting the net workers compensation figure of $28,344.17 calculated from 9 April 2009, when the workers compensation payments ceased, to today (about three years) at a rate of 5%. That is, $82,110.04 - 28,344.17 = $53,765.87 x 5% per annum for three years = $8,064.88.

[112] There should be an award for loss of past superannuation contributions due to past economic loss at a rate of 12%, that is, $9,853.20.

Future economic loss

[113] Mr Hosmer, who recently turned 41,[145] seeks an award for future economic loss calculated on the premise he would have continued working at the Council until retirement at age 67 in approximately 26 years time.  As mentioned above I favour an earlier assumed retirement age for calculation purposes of 62, that is, in 21 years time.

[114] The Council submits it is likely Mr Hosmer would have chosen not to stay in his job at the Council for much longer and continued to follow his past cycle of changing jobs.  I disagree.  This was his first “government” job.  It represented security he had not experienced in the town he had settled in and settled his children in.  In as much as such matters can be predicted it is likely he would have stayed in the Council’s employment for the long term.  In the circumstances it is appropriate to calculate his future economic loss by reference to his hypothetical future income were he to have remained in his job at the Council.

[115] Using Mr Hosmer’s hypothetical weekly net income, were he presently employed at the Council, of $805.21 and applying the 5% tables’ 21 years multiplier of 686 gives an amount of $552,374.06 for future economic loss absent contingencies.

[116] It will be necessary to discount that figure for contingencies.  That discount will need to allow for the 35% probability discussed earlier.  Some allowance must also be made for Mr Hosmer’s residual income earning capacity because, over time, Mr Hosmer may eventually secure and retain employment in a less physically demanding occupation than he has previously held, thus reducing his future economic loss. As earlier discussed he retains a residual physical capacity for work but the employability difficulties confronting him are very significant now that he has lost the ability to earn a living in the only area of work in which he has substantial experience. His dilemma is summed up by the words of Chesterman J, as he then was, in considering a similar defendant in Bugge v REB Engineering Pty Ltd:

“The fact remains that he is a man of limited education whose occupational experience and qualifications are restricted to heavy manual work and he is unfit for such work.”[146]

In the circumstances I will allow for his residual income earning capacity in adopting an overall contingency discount for future economic loss of 55%.

[117] This gives rise to an award for future economic loss calculated as $552,374.06 x 45% = $248,568.33.

[118] There should be an award for loss of future superannuation contributions due to future economic loss at a rate of 12%, that is, $29,828.20.

Special damages

[119] In respect of special damages the parties are agreed on the following awards:

[120] The plaintiff also claims for sexual dysfunction medication (100 weeks @ $80) but that must fail because, for the reasons already mentioned, the evidence does not establish on the balance of probabilities that the injury caused sexual dysfunction.

[121] Further, an amount of $780.20 is claimed for pharmaceuticals that appear to have been for relief of pain associated with the injury. The defendant does not dispute the accuracy of the amount but contends it should be halved, as they would have been likely needed in any event because of the pre-existing condition. Consistently with the approach already adopted I discount the amount by 35% to $507.13.  That combines with the above sub-total for a special damages award of $7,633.20.

[122] There was no specific claim for interest on this sum however the defendant concedes there should be interest on the above discounted pharmaceutical amount and $12.45 medical expenses paid by the plaintiff, namely, on $519.58 at 5% per annum since the injury, which was nearly four years ago, that is,  $519.58 x 5% x 4 = $103.92.

Future expenses

[123] The plaintiff claims the following future expenses:

[124] The only component conceded by the defendant is 50% of the claim for future medication; the premise of the discount again being the medication would likely be needed in any event because of the pre-existing condition. This aspect is relevant to all components in this category and will be further considered below.

[125] For the reasons previously discussed the claim for sexual dysfunction medication must fail.

[126] As to the other components the Council submits Mr Hosmer will never pay for or undergo occupational rehabilitation, cognitive behaviour rehabilitation, occupational or physiotherapy or the travel required for it. That scepticism flows from Mr Hosmer’s lack of evident commitment to date in seeking such assistance. However, he is only 41 and it is likely he will become more motivated to that end after time passes following judgment.  He will require such assistance in better managing his pain and entering and remaining in the workforce. It would be inconsistent to discount his award for future economic loss in order to allow for the prospect of him returning to the workforce, as I have done above, but in turn deprive him of the award necessary to equip him with a reasonable prospect of being able to do so. 

[127] The evidence reasonably supports the amounts claimed for the occupational and the cognitive behavioural (pain management) rehabilitation and the travel and accommodation amounts are reasonable.[147] The foundation for the cost of annual treatment by an occupational therapist or physiotherapist of $450 plus associated annual travel of $70, a weekly total of $10, was not challenged.[148] Assuming a life expectancy of 40 years and applying the 5% tables (multiplier 918) that would equate to $9,180, which is close to but not quite the figure claimed.

[128] Turning to the question of to what extent the above accepted amounts should be discounted, allowance should be made for the possibility that at some future time the pre-existing condition would have resulted in Mr Hosmer being disabled to his present extent, thus occasioning a need for these future expenses not occasioned by the injury for which the Council is liable. Again there should be a discount of 35% to allow for that contingency.

[129] Therefore I allow:

Fox v Wood

[130] The Fox v Wood component is agreed by the parties to be $4,654.[149]

Workcare

[131] It is common ground that a Workcare amount of $39,849.49 should be deducted from the total award.

Summary

Order

[132] I order:

1. Judgment for the plaintiff in the sum of $413,600.43.

2. I will hear the parties as to costs at 9.15 am on 2 May 2012 and give leave for the parties to then appear by telephone or, if they are in mutual agreement to do so, to submit written argument by that time in lieu of their appearance.